LexJAKKI @ SELVARAJ AND ANR. versus STATE REP. BY THE IP, COIMBATORE
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A JAKKI@ SELVARAJ AND ANR. y- v. STATE REP. BY THE JP, COIMBATORE FEBRUARY 14, 2007 B [DR.ARIJIT PASA YAT AND S.H. KAPADIA, JJ.] Penal Code, 1860-ss. 148 and 302-Prosecution for murder-Three ... eye-witnesses to the incident-Two of the witnesses, turned hostile-Evidence / of one eye-witness corroborated by medical evidence-On the basis of evidence c of the eye-witness all the accused convicted by trial court-High Court convicted two accused on the basis of evidence of the eye-witness-But acquitted the co-accused finding the evidence of the eyewitness insufficient to fasten the guilt on them-On appeal, held: Conviction of the two accused on the basis of evidence of the eye-witness justified-Even when the testimony D of a witness is discarded in part vis-a-vis some other co-accused persons, that cannot per se· be the reason to discard his evidence in toto. ~ Doctrine:Doctrine of 'falsus in uno fa ls us in omnibus-Applicability ., of-Held: The. maxim has no application in India-It is not a rule of law, but merely a rule of caution-Even if major portion of evidence is found to be E deficient, if residue is sufficient to prove guilt, notwithstanding acquittal of number of other co-accused, conviction can be maintained ~- ' Criminal.Trial-Oral Evidence-Discrepancies-Material discrepancies and normal discrepancies-Effect of-On prosecution case. F Appellants-accused, alongwith four other accused, were prosecuted for \. having caused death of one person. Prosecution case was that there was difference between the accused persons on one side and deceased and PW-1 on the other side. On the day of the incident all the accused unlawfully assembled at a particular place armed with dangerous weapons with an G intention to kill the deceased and PW-1. They assaulted the deceased and chased PWt, who managed to escape. PWs 1, 2 and 3 were the eye-witnesses. - During trial PWs I and 2 resiled from their statements made during ..._ investigation. All the 6 accused incl11ding the appellants were convicted by trial court - Al to 4 under section 148 and 302' IPC, A-5 to 6 under section 147 and,302 read withs. 149 IPC. On appeal, High Court held that evidence H 584 JAKKl@SELVARAJv. STATEREP.BYTHEIP,COIMBATORE 585 of PW-13 was not reliable so far as it related to A-3 to A-6, but the same was A ---;- reliable so far as appellants-accused were concerned. Hence appellants- accused were convicted and rest of the accused were acquitted. Hence the present appeal. ·f ' •. .Jo, Dismissing the appeal, the Court B HELD: 1. 1. Even when the testimony of a witness is discarded in part vis-a-vis some other co-accused persons, that cannot per se be the reason to discard his evidence in toto. As rightly observed by the trial Court and the High Court, the evidence of PW-13 has not been shakened in any manner though he was cross examined at length. Additionally, the trial Court and the C High Court have found that the evidence of the doctor (PW-4) clearly shows existence of injuries in the manner described by PW-13 by weapons allegedly held by the appellants. In that view of the matter, the judgment of the High Court does not suffer from any infirmity. (Para IO( [590-E, F) 1.2. Merely because some of the accused persons have been acquitted, D though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted · must also be acquitted. It is always open to a Court to differentiate accused who had been acq~ltteil from those who were convicted. [Para 9( (589-D, E] .. _, .. ,·, ~; i', Gurcharan Singh and Anr. v. State of Punjab, AIR (1956) SC 460, E referred to. 1.3. Plea to throw.out the entire prosecution case, on the ground of non- acceptance of evidence tendered by PW-13. i.e. application of the princip~ of "falsus in unofalsus in omnibus" (false in one thing, false in everything), is clearly untenable. Even if major portion of evidence is found to be deficient, F in case residue is sufficient to prove guilt of.an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to G be deficient to prove guilt of other accused persons. Fal
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